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NEWS MEDIA UPDATE · VIRGINIA · Secret Courts · May 22, 2006
Torture claim dismissed under state secrets privilege
May 22, 2006 · Allowing a German citizen's lawsuit alleging CIA-led torture to proceed to trial would reveal state secrets and endanger national security, a federal judge has ruled in dismissing the case under the state secrets privilege.
The once rarely used privilege -- created by a 1953 U.S. Supreme Court ruling -- allows courts to dismiss lawsuits in which the government convinces a judge that even trying the case under extraordinary secrecy could reveal state secrets.
That means that unless a May 12 ruling by U.S. District Court Judge T.S. Ellis III is overturned on appeal, reporters and the public will never have an answer from the courts on whether Khaled el-Masri deserves $75,000 in compensation from the U.S. government for what he alleges was five months of torture at the hands of the CIA. El-Masri claims he was kidnapped on New Year's Eve 2003 at the Serbian-Macedonian border and beaten, sodomized and imprisoned at the "Salt Pit," a CIA-run facility in Afghanistan.
Judge Ellis did not consider the validity of el-Masri's allegations, but after reviewing evidence in the case -- a classified declaration labeled "JUDGE'S EYES ONLY" and an unclassified public declaration -- ruled that the government properly sought to protect national security.
"[T]here is no doubt that the state secrets privilege is validly asserted here," Judge Ellis wrote.
Under the privilege, Judge Ellis did not have to weigh the public's interest in the case in deciding whether it should continue to trial. He noted that "unlike other privileges, the state secrets privilege is absolute and therefore once a court is satisfied that the claim is validly asserted, the privilege is not subject to a judicial balancing of the various interests at stake."
Ellis rejected the idea that reporting by the media and the government on CIA renditions diminished the government's privilege, and noted that applying the privilege "is wholly independent of the truth or falsity" of el-Masri's claims.
He also noted that the case is so sensitive to national security that the CIA can neither confirm nor deny the allegations publicly.
"While a public admission of the alleged facts would obviously reveal sensitive means and methods of the country's intelligence operations, a denial of the alleged facts would also be damaging, as it may raise an inference of veracity in those cases where the government does not deny similarly sensitive allegations but asserts the state secrets privilege instead," Judge Ellis wrote.
The U.S. Supreme Court created the state secrets privilege in 1953 in Reynolds v. U.S. in which the government withheld for national security reasons the records of a 1948 crash of a B-29 bomber in rural Georgia. (The U.S. Court of Appeals in Philadelphia (3rd Cir.) ruled last fall that revelations in declassified documents of a cover-up in the Reynolds case did not constitute a fraud upon the court.)
Judge Ellis noted that if el-Masri's allegations are true, he "deserves a remedy" but it must come from the executive branch or Congress, not the courts.
"In times of war, our country, chiefly though the Executive Branch, must often take exceptional steps to thwart the enemy," Judge Ellis wrote. "Of course, reasonable and patriotic Americans are still free to disagree about the propriety and efficacy of those exceptional steps. But what this decision holds is that these steps are not proper grist for the judicial mill where, as here, state secrets are at the center of the suit and the privilege if validly invoked."
The American Civil Liberties Union, which is representing el-Masri, announced Friday that it plans to appeal Judge Ellis' ruling.
(El-Masri v. Tenet; Plaintiff's counsel: Ben Wizner, American Civil Liberties Union, N.Y.) -- KM